The Strange Temporalities of Work-life Balance Law

Introduction
This research paper is part of a broader project on law and time. I am in the midst of studying the time related concepts and assumptions that structure some of the key initiatives in the area of equalities regulation in the UK over the past two decades. Time fulfils certain legal and political functions in equalities law and policy, establishing the parameters through which a person might claim a legal identity in order to argue a discrimination case, for example, or providing a paradigm for thinking about the allocation of care responsibilities. Time-related concepts put limits on what types of law people can use and what people need to do to access rights. For these, and many other reasons, studying the temporal assumptions that structure equality laws provides rich material for understanding what we think these laws can and should do.

My book-in-progress, tentatively entitled Doing Things with Time: Legal Temporalities in Equality Projects, focuses on specific equality projects as instances of temporalised law and politics – the unpaid care burden, for example, constituted and regulated as a means of balancing time. Yet, far from merely tracing how legal concepts and communities symbolise time, or how they use temporal concepts in their world-making features, I am also interested in the materialisation of time and interconnections between time, matter, form and objects in the making of law. Key temporalities within work-life balance law – balance, equilibrium, and flexibility, for example – therefore become amenable to inquiry through the actions of documents and documentary practices, administrative forms, and the form of law itself in materialising time alongside and in relationship with human legal subjects. As Michel Serres puts it: ‘Time doesn’t flow; it percolates’ (Latour and Serres 1995, 58). With this in mind, we might ask: how has work-life balance percolated? What role have human and non-human legal actors played in confabulating this temporal form?

Work-life balance has been materialised in a variety of different ways, for inconsistent and sometimes incommensurable reasons, and, many times, outside of the rational, agentic actions of sovereign legal subjects. As a form of legal (and policy) temporality, it has emerged, I argue, through specific relationships between actors (human and non-human) of different types at a range of levels. As such, the intellectual or political purchase of work-life balance, its effectiveness as a response (if that is what it is) to questions of social reproduction and gendered dynamics of work, and, more importantly perhaps, its epistemological or heuristic status, must be questioned a lot more closely as a matter of disaggregated or provisional networked relationships, connections, and agencies, rather than through the paradigm of coherent (if not wholly effective) policy and legal reform that dominates much of the literature to date.

Analysing the strange temporalities of work-life balance provides a way of doing this. It provides us with a means to look both at and past balance, to take balance at its word, examine its form, and watch how it circulates, but also to be aware of the strange currents and ripples it creates. As I hope to demonstrate in this paper, at the heart of present regulatory models and policy concepts is a set of understandings of time, and specifically temporal equilibrium, that have significant effects, and which are materialised in specific ways.  As a feminist labour lawyer, I am concerned with analysing the technical legal measures in this area for the social relations that they assume and help to constitute. Even the most mundane details of work-life balance laws and policies present rich material for understanding bureaucratic conceptualisations of gender, time and value. If, as Lisa Adkins argues, temporal relations now provide the key ground for feminist theorising (Adkins 2009), our attention should turn to what types of temporality structure legal and policy engagements with women's working lives.

Legal Temporalities
Cultural theorist Elizabeth Freeman defines as ‘temporal mechanisms' those social and political processes that reproduce norms of the family, citizenship, health, and work through the exercise of time (Freeman 2005, 57). In more recent scholarship, Freeman has expanded this into a theory of ‘chrono-normativity': what she refers to as ‘the use of time to organize individual human bodies toward maximum productivity' (Freeman 2011, 3), and also as the ways in which ‘genealogies of descent and mundane workings of domestic life interlock through temporal schemes' (Freeman 2011, xxii). Some examples of chrono-normativity might include the supposedly ‘normal' timeline of childhood, puberty, courtship, marriage, children, and retirement, from which we all deviate to greater or lesser extent during our lives; or the time of the working day and working week, shaped through contestation over labour rights and pay; or the temporal idea, for queers, of ‘coming out', for immigrants, of ‘becoming citizens', or for offenders, of ‘doing time'.

Temporal Mechanisms or Provocations?
Work-life balance measures, conceived through critical feminist responses to the unequal allocation of undervalued care and the concomitant effects on women of labour market segregation, are temporal mechanisms. They challenge chrono-normativity to the extent that they challenge the hitherto ‘male' time of work: a working day facilitated by women's social reproduction.(1) Work-life balance is also a good example of how social ideas of time have emerged through law itself: work-life balance is inherently also a socio-legal concept. Unsurprisingly, however, it has also been subject to a number of critiques. Despite the potential of work-life balance laws to upset norms of care and work, feminist labour lawyers have argued that these mechanisms have instead reasserted gender roles within the family and in work and reified the position of women as the key agents for performing the ‘reconciliation' of work and family life (Fudge and Owens 2006). Legal and policy work-life balance initiatives have operated within an ideological matrix of family, household, and market relationships which is paradigmatically white (Lung 2010; Lewis 2000) middle to high income (Williams 2005), and heteronormative, even as attempts to recognise queer family forms have become apparent on the face of some legislative reforms (Conaghan and Grabham 2007). In promoting ‘gender-sharing' or roles for fathers in care, work-life balance can also be positioned amongst policies which increasingly attempt to re-structure normative heterosexuality to maintain a concept of privatised social reproduction (Bedford 2009).

So for many, feminist scholarship and activism on social reproduction has not been mobilised in effective ways through legal and policy interventions on work-life balance, which have not sufficiently re-drawn the conceptual paradigms of labour law (e.g. Conaghan 2004). But despite many feminist labour lawyers finding work-life balance to be a problematic response to gendering processes within labour law, it nevertheless has been a fact of life, it has held a certain self-evident truth in the field, and it has provided something of a ‘provocation', as Kathi Weeks would put it, to think otherwise about women's participation in the paid labour market (Weeks 2011).

Materialising Law and Time
It should be possible to hold in place this understanding of work-life balance as provocation whilst also analysing the co-constitution of legal and policy temporalities as specific, located instances of pragmatic governance or governmentality. Yet the question that still remains within this kind of analysis is how these temporal mechanisms come about, how they are created. My dilemma is how to think about what time looks like and what it does, where it comes from, where it goes, when the ontological and agentic field is populated just as much by matter, objects, the non-human, as it is by humans. When agency is the domain purely of humans, then time is about history: it’s about the forward or circular movement of events or themes, it’s about epochs and narratives. As we know, this is a particular theory of agency and time, specifically it is modernity (Latour 1993). As hardly needs repeating, Bruno Latour’s task in We Have Never Been Modern, for example, has been to provide an account of the condition of modernity and to reconstruct the separation between humans and nonhumans in order to arrive at what he terms the ‘full constitution’ (Latour 1993, 14). As part of this task, Latour takes on what he calls the ‘temporal framework of the moderns’ (Latour 1993, 67), a paradigm characterised by the ‘arrow of time’, definitive temporal breaks, and, most importantly, the passing of time. Moderns, as Latour puts it, understand time passing as if it abolishes all that is left behind, yet they also want to keep, date, save, and display the past. This idea of time passing irreversibly is, as such, a technique of modernity, a ‘classificatory device’ for evacuating the work that goes into keeping the natural and the social separate (Latour 1993, 73). In Latour’s account, the concept of time passing requires further interrogation. Furthermore, the modern approach to time, nature, and society allows them to hold in place two fields of time: one ahistorical field populated by universal and necessary things or forces of nature; the other, much more contingent field of human history, detached from things.

Distilling Latour’s work on time down for the purposes of this paper, I think it is possible to delineate three propositions. First, time as such is not an overarching principle but the identifiable result of a provisional hooking together of elements into something that, in modern terms, looks cohesive (but which cohesiveness is always failing). Second, the passage of time, no matter how real and tangible its effects, is a classificatory device, or technique, which accompanies the moderns’ purification of nature and society. Third, temporalities are the result of connecting and filing, so that if we change the classification, a new temporality emerges. In order to more fully account for nonhumans, however, it also becomes necessary to focus on the sorting:

We have never moved either forward or backward. We have always actively sorted out elements belonging to different times. We can still sort. It is the sorting that makes the times, not the times that make the sorting. Modernism - like its anti- and post-modern corollaries - was only the provisional result of a selection made by a small number of agents in the name of all. If there are more of us who regain the capacity to do our own sorting of the elements that belong to our time, we will rediscover the freedom of movement that modernism denied us - a freedom that, in fact, we have never really lost. (Latour 1993, 76)

The Legal Temporalities of Work-life Balance
If time is created through a sorting process, through connections among entities, then part of any analysis should include sorting processes that we choose, for various reasons, to name as legal. As a route to balancing ‘work' and ‘life', the UK’s right to request flexible work contains much of interest for a feminist analysis of how legal temporalities are created and sustained. What does it mean, for example, that a concept of temporal ‘balance', or labour market equilibrium, lies at the heart of bureaucratic and legislative approaches to gendered labour structures?

Resolution: A Reckonable Present
Marieke De Goede has shown how the socio-technical concept of ‘real time', central to finance capitalism, became possible partly through the development of the Dow Jones index, which helped to produce ideas of instantaneous adaptive change and hedgeable futures (de Goede 2005). A similar ethnographic analysis of work-life balance policies and laws might trace the interaction of feminist conceptions of social reproduction, time-use surveys, sex discrimination laws and policies, and new theories of management such as TQM (total quality management) which valorise organisational adaptability and worker responsibilisation (Amoore 2004), to create motivating social policy goals of equilibrium and adaptation. The confabulated logic of work-life balance, a result of many different influences, seems to be driven by a fundamental assumption that the constructed tensions of imbalance or dis-equilibrium can be resolved. This type of resolution rests on a perceived equivalence between different forms and uses of time that at least allows them to be measurable on the same scale, so that time spent on social reproduction is analogous to time spent in paid employment.

Feminists have long argued that time spent on care or domestic work is equally valuable to time spent in the formal economy. Work-life balance policies are one logical extension of this argument: if time that has been excluded is to be included in some way, then it must be analogised. As the foreword to the recent Modern Workplaces consultation put it:

We want to create a society where work and family complement one another. One where employers have the flexibility and certainty to recruit and retain the skilled labour they need to develop their businesses. And one where employees no longer have to choose between a rewarding career and a fulfilling home life. (BIS 2011, 2)

The point at which this analysis has to engage with law is the point at which we assess the significance of legal technique and legal form to such an understanding of time. Within the legal and policy sphere in the UK since the early to mid-1990s, work-life balance has been mobilised by the idea of empowering employees to negotiate flexible working with their employers. The current right to request flexible working in the UK's Employment Rights Act 1996 (ERA) allows certain employees with responsibility for a child's upbringing, or with other care responsibilities, to make a request to alter their working schedule. Under sections 80F-80I of the ERA, employees have the right to request, but not receive as such, a change in their terms and conditions such as a change in working hours, time of work, or place of work.

It is important not to ignore the generative functions of legal techniques such as the right to request. Since it has been in place, the right has created new means of sorting time within the context of employment relations in the UK, and arguably it has also created new gendered relations in the workplace. Sara Jain has argued that typewriters contributed to a process of heterosexualisation of workplace relations in the twentieth century (Jain 2006), and I am in the process of fieldwork which aims to assess whether and how documentary practices associated with the right to request (such as filling in, submitting, and considering forms) have created new gendered and heteronormalised social patterns at work, and new genres of temporality. In other words, I am interested in the role of the flexible work request form in creating particular, gendered, social relations of time in this area.  These temporalities, crucially, do not stem merely from the social interactions that flexible work requests engender, but instead are co-constructed through, and constitutive of, fragile relations between forms, people, and law.

Furthermore, this documentary route to achieving flexible work as a precursor to achieving balance is an interesting mix of private law and legislated right. As such, the form of law is just as interesting as the documents it generates. This particular form requires an employer to at least consider an employee’s request for a varied working arrangement, a consideration that is otherwise not strictly necessary in the contractual negotiations that surround the individual employment relationship in the UK.(2) In this way, UK legal mechanisms of work-life balance are themselves rich sources of information about regulatory understandings of gender, value, time, and the place of law, questions which are being asked in a range of scholarship in the fields of law, anthropology, and governance. In her recent analysis of the introduction of a new banking system in Japan, for example, Annelise Riles refers to bureaucrats' hopes that a system based on ‘real time' transactions would responsibilise banks, leaving a new order to emerge based on ‘market practice' (Riles 2011). The idea was that the new technology would encourage banks to control their risk-taking practices. This was a specifically bureaucratic vision or hope, which relied on bureaucrats' ability to see the banking system as a whole. Similarly, successive groups of bureaucrats in the UK's Department for Business, Innovation and Skills (BIS), and, I would argue, policy makers, many of them feminists, have created a system of delegated negotiations between employers and employees in the right to request, through which actions of autonomous and self-interested market participants are seen to create beneficial or self-correcting economic effects at the level of the labour market. I use the term ‘delegated' because the right to request flexible work does not amount to a direct right granted by legislation to receive a flexible working arrangement as such. It depends on a further step, the request, which mobilises a semi-regulated private law process in which the role of the employer is central. In other words, it seems that the right to request evidences a wish to dis-entangle bureaucratic involvement, or keep it partially away from a market which is perceived already to have self-regulating functions.  As such the right could evidence an almost Hayekian appreciation of the self-regulating functions of private law negotiations, happening in so-called ‘real time’ to resolve labour market tensions around the allocation of care responsibilities.

Recent proposed changes to the right to request have universalised the right to request and further embedded it within this logic of private ordering. In May 2011, in the midst of economic crisis and on the back of a pro-‘austerity' platform, the UK's centre-right Coalition government announced a new consultation on reforming work-life balance law. Entitled Modern Workplaces, the consultation was the government's effort to ‘create a modern workforce for the modern economy'.(3) It covered four main policy areas: flexible working, flexible parental leave, working time and equal pay. Self-consciously aware of perceived shifts in the gendered arrangements of work and care, the consultation contained extensive proposals to change the administration of maternity and paternity leave, allowing ‘mothers' and ‘fathers' to share leave between them, extending parental leave (to comply with European Union case-law), and introducing changes to the scope and administration of flexible working, amongst other things. Significantly, in what might appear to be a bold and progressive move, the Coalition government proposed in the Modern Workplaces consultation to expand the availability of the current right to request flexible work, making it available to all employees, regardless of whether they have a care obligation. These proposals are now contained in the Children and Families Bill 2013, which is currently making its way through the UK Parliament.

This could be seen as a shift to undermine the gendering of care-related requests in the workplace. In other words, it could be read as an equality move, albeit based on something akin to a formal equality model: if anyone can make a request for flexible work, then the gendering of unpaid care is apparently challenged. However, this shift is just as much to do with private law and the logic of labour market equilibrium as it is to do with shifts in conjugal work and care models. In the Parliamentary debates around the Children and Families Bill, government ministers persistently adopt the idea of flexible work as economic strategy. Edward Timpson, Parliamentary Under Secretary of State for Children and Families, for example, put it as follows during the second reading of the Bill on 25 February 2013:

We believe that supporting strong families and introducing flexible working practices is key to achieving business and economic growth. A new system of shared parental leave will support business by creating a more motivated, flexible and talented work force. Flexible working will also help widen the pool of talent in the labour market, helping to drive growth.(4)

Flexibility Requests: A Modulated Suspension of Certainty?
Such a view of the right to request is supported by the fact that pre- and post-reforms, it still sets no particular temporal standards, as such, around the arrangement of working time. Instead, the framework provides a space for individuated arrangements with specific, and staged, temporal qualities. The right to request process begins with an employee filling in a flexible working request form (or similar document) and submitting it to their employer. The employer must then call a meeting within twenty eight days to discuss the form, and they must make a decision about the request within fourteen days of the meeting. Employers can refuse requests only for business reasons outlined in the ERA, for example, if the new working pattern would adversely affect quality and performance. If the employer refuses a request on incorrect facts, or for a reason that is not listed in section 80G ERA, the employee can make a complaint to an Employment Tribunal for reconsideration of the original application or for compensation.

The logic of the first part of this process encourages something akin to the modulated suspension of certainty that Latour perceives in his ethnographic study of the workings of the Conseil D'État. Latour remarks that legal processes within the Conseil produce a sort of homeostasis, a sense of everything being covered ‘completely and seamlessly', unlike scientific processes which leave voids (Latour 2010, 114). Homeostasis evokes the ability to maintain a constant through the adjustment of other features of a system. Arguably the temporal horizon of homeostasis does particular work within Latour's analysis. Legal processes, and hence conseillers, labour under an obligation to ensure legal predictability (or securité juridique). To some, predictability might imply a progressive or consolidating temporal narrative: certainty filters in through the ambience in the Conseil, is strengthened through legal process, and then finally established in the act of judgment. A lack of certainty gives way to a relative sufficiency. But this is not how Latour describes it. In fact, on Latour's analysis, legal predictability happens through the fabrication of doubt and distancing - in other words, through the strategic avoidance of certainty. As Latour puts it, these distancing procedures are required so as to ensure that the law ‘has doubted properly' (Latour 2010, 94). Having suspended certainty, and indeed actively fabricated doubt, a curious completeness takes over law: homeostasis, a type of all-encompassing, self-adjusting, temporality (Latour 2010, 113), produced through a multitude of adjustments and changes in pace. From the present (post-judgment) vantage point, the legal principle confirmed through proceedings at the Conseil is as it has always been, despite the fact that the entire process was pursued through means of a graduated suspension of certainty.

Such a suspension of certainty can be seen in the process of applying for, and deciding on, a request for flexible work under the ERA, characterised through time periods, the exchange of documents, and the apparent open-minded deliberation of the employer. However, according to the ERA, the employer must then make a decision within fourteen days of the meeting. At this stage of legal proceedings, the decision is final. It either results in an entirely new contract or the reassertion of the old contract. In fact, once the new contract exists, the dilemmas that motivated the negotiations under the old contract have become impossible to mobilise legally. This is definitely not a flexible legal scheme in the normal sense of the word. The right to request only provides flexibility to shift to a new, on-going, seemingly permanent but legally indeterminate, working regime, and no guarantee, on the face of it, to shift back or shift again when required. This technical legal mechanism can only currently be exercised once every twelve months. As such, the employer's deliberation, the employee's submission to time periods and form-filling, and the all-encompassing time of the new contract all contribute to an understanding of the flexible work request as inaugurating a type of staged legal homeostasis. This is a strange and contradictory legal temporal mechanism: a right to negotiate only, for a form of flexibility which leads to a new permanent working arrangement.

Concluding Remarks
Work-life balance laws and policies, themselves embedded in mutating networks of gender, labour, and value, have a range of contradictory logics and significant social effects. In the context of the insistent demands of two, perhaps three generations of feminists, for example through wages for housework demands, some might argue that the stultifying effects of aiming for ‘balance' have ensnared utopian feminist visions of re-valuing social reproduction into restrictive practices of negotiation and exclusion. Those women who find their way through increasingly complex eligibility requirements to claim the right to request flexible work in UK law, for example, are met with onerous processes of form-filling, negotiation, and time periods, raising concern over the transformative potential of work-life balance laws. Certainly, my own approach over recent years has become increasingly critical of ideas of ‘balance' within feminist or other social policy initiatives.

Scholars who are concerned with questions of social reproduction and labour regulation should be mindful of the argument that the ‘real time’ resolution model found in legal mechanisms such as the right to request flexible work are no less feminist because they are based on a logic of market-oriented solutions. Those of us who might wish for more radical solutions to the unpaid care dilemma also need, first, to understand how it is that feminist conceptions of social reproduction contribute to this hybridised legal mash-up, and second, to accept, to a certain degree, that this strange legal-conceptual model is a fact, worthy of close attention on its own behalf. It is strange enough, as it is, to be worthy of considerably more research attention in terms of its legal form and temporal assumptions.

If we pay this kind of attention to legal work-life balance mechanisms, we find that form-filling, negotiation, and legislated time periods are themselves constitutive of time. They create (legal) temporalities through a process akin to what Latour would term ‘sorting’. As such, whilst I remain critical of legislated work-life balance projects, it remains necessary to understand their temporal assumptions and logics. The picture that emerges is confusing, involving a range of contradictory temporal mechanisms - legalised homeostasis, flexibility through permanence, for example. Yet by looking closely at legal technicalities, we can discern much about the conceptual logic that affects many of us through influential regulatory strategies.

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